How Much Can ENDA Really Do? And Is Formal Legal Equality the Right Goal?

Gay marriage, ENDA, and the repeal of DADT: the three big goals of the mainstream gay rights movement. ENDA sounds great on paper (after all, I’m not going to argue that I think people should be able to fire and/or not hire me because of I’m queer or because of how I identify) and, indeed, would be a legislative victory. Nevertheless, the question of whether passing ENDA will do much good for the LGBTQ community still remains.

ENDA would extend federal nondiscrimination employment protections to include sexual orientation and gender identity, making it so that it would be illegal to fire, or refuse to hire, someone based on their sexual orientation or gender identity. As such, it’s really all about formal legal equality. In Equality, Affirmative Action, and Justice, Johan Rabe writes:

Formal legal equality requires the equal treatment of facts and circumstances without regard to the actual circumstances of the individual and relates to the abolishment of artificial differentiation made by discriminatory legislation (171).

One of the problems with formal legal equality being the ultimate goal is that it is largely symbolic. It presumably makes a statement that LGBTQ people are “equal” to people who are heterosexual and cissexual/cisgendered. But does it do much more than that? Technically, companies are supposed to abide by the employment nondiscrimination protections, but it’s questionable whether those protections are, in fact, enforced and followed. And frankly, if a company fires you, or refuses to hire you, and you know that it was because you’re queer or trans, what recourse do you have? Well, you could sue the company, if you have the time, money, and knowledge. However, it’s incredibly difficult to “prove” that one’s sexual orientation or gender identity (not gender expression, mind you) is the cause of the company’s actions.

There’s also the question of whether formal legal equality actually makes a difference. An essay titled “Racial Justice in the 21st Century: New Remedies for Persistent Problems from the ACLU website points out,

[T]he establishment of formal, legal equality has not led to the elimination of unjust differences based on skin color: major disproportions persist in education, housing, imprisonment, family structure, unemployment, wealth and opportunities for advancement.

Nor has formal legal equality resulted in actual equality for women. Why, then, should we believe that it would work for members of the LGBTQ community?

In his lecture “Critical Queer and Trans Political Practice: Movement Infrastructure and Accountability,” Dean Spade gave a critique of anti-discrimination laws like ENDA. One of the problems he discussed is that anti-discrimination laws are based on a theory of equal opportunity and thus promote the idea that the general economic system in the U.S. is fair (as it presumes that equality of opportunity is all that is necessary for people to succeed or fail for on their own merits). However, the U.S. economic system — and the society in which it is situated — is rife with inequities (which I will discuss in a later post).

Furthermore, as Dean Spade pointed out, anti-discrimination laws work within a framework of the perpetrator perspective (essentially, that the goal is to punish the “bad people”), which individualizes and suggests that there isn’t a larger problem. It doesn’t let us look at the conditions, just at people’s individual actions, which makes it nearly impossible to “prove” discrimination, as discrimination often works indirectly and in more insidious ways than obvious, specific actions. Furthermore, because the framework of the perpetrator perspective assumes that discrimination must be the result of a prejudiced person, it ignores the ways in which social institutions, and society as a whole, discriminate against people. Allan Johnson writes, “Individualistic thinking . . . assumes that everything has only to do with individuals and nothing to do with social categories” (77).

Dean Spade argued that pursuing formal legal equality is not only inadequate but harmful, as it is a feature of a system that perpetuates inequality and disparity. “Racial Justice in the 21st Century” argues similarly regarding racial justice:

For although those structural inequalities based on skin color were created and maintained by governmental actions, they do not require any governmental action now or prospectively in order to maintain unjust skin-color differentials into the indefinite future. Nor is it necessary for anti-discrimination laws to be violated in order for such differentials to endure. In effect, a regime of formal equality, layered on top of these structural inequalities, functions as a seniority system for injustice, placing a veneer of fairness over a fundamentally unfair structure [emphasis added].

Instead of working to fix the overarching problem — instead of working to create a system that does not preserve, sustain, and support inequality — ENDA works as a bandage, trying to patch up that system that isn’t working.

It’s always nice to see that Christianity doesn’t have to be synonymous with believing that queers are going to hell, or that being queer is a sin or mental disorder, or that trans folk are going against “God’s will” (or also going to hell, sinners, or having mental disorders). And I have a number of friends for whom integrating Christianity and their LGBTQ identities is important, so thank you for that link.